Posted
by
samzenpus
on Thursday January 03, 2013 @08:07AM
from the lost-their-wheels dept.

Hugh Pickens writes writes "Eriq Gardner writes that Warner Brothers is suing California resident Mark Towle, a specialist in customizing replicas of automobiles featured in films and TV shows, for selling replicas of automobiles from the 1960s ABC series Batman by arguing that copyright protection extends to the overall look and feel of the Batmobile. The case hinges on what exactly is a Batmobile — an automobile or a piece of intellectual property? Warner attorney J. Andrew Coombs argues in legal papers that the Batmobile incorporates trademarks with distinctive secondary meaning and that by selling an unauthorized replica, Towle is likely to confuse consumers about whether the cars are DC products are not. Towle's attorney Larry Zerner, argues that automobiles aren't copyrightable. 'It is black letter law that useful articles, such as automobiles, do not qualify as "sculptural works" and are thus not eligible for copyright protection,' writes Zerner adding that a decision to affirm copyright elements of automotive design features could be exploited by automobile manufacturers. 'The implications of a ruling upholding this standard are easy to imagine. Ford, Toyota, Ferrari and Honda would start publishing comic books, so that they could protect what, up until now, was unprotectable.'"

I would argue the automobile is a sculpture, and therefore protect-able from exact replication using blueprints/tooling. However, like any work of art, it is an interpretation by the artist. If I make a Batmobile-looking car I am making what my interpretation of the Batmobile is, it's not the same as making a Batmobile. As long as I do not sell the item claiming it is, in fact, a real Batmobile or use trademarked brands on the car or in it's promotion then I should be okay.

Vehicles from the 1940s through 1970s, and into the 80s? Sure they are - or can be, at least.

But pretty much every automobile today is just a stylized wind tunnel tested form. They're somewhat more unique than the crap from about a decade ago and have unique bumpers, grills, etc. but for the most part there's little to distinguish them from each other, with rare exception. VW is making cars that look like Porche; BMW is making cars that look like Cadillac; and so on.

The original Batmobile (from the 60s show)? I'm sorry, but even as a kid it was pretty obvious there wasn't much distinctive about the car. They put some stylized fins on it, painted it like his underwear, and put a cockpit and jet propulsion on it to say "look, it goes fast". Sorry. That's like saying an iPhone is art: how, exactly, does it deviate from commonly expected definitions of whatever it serves functionally? It doesn't.

I wish you were correct. They only really decent wind tunnel designs I ever see are on either hybrids or supercars which is another wind tunnel design for another purpose.

The Nissan 240SX, introduced in 1989, has a Cd of 0.26, which makes it competitive with hybrids. They get 30 mpg on the highway in stock form, without driving them especially carefully, and they have an extremely primitive engine by modern standards. It's a truck motor basically, but Nissan used it in everything. There's a single cam and a twin cam and the difference is negligible and it's cheaper to get a reground cam when you only need one. One of the best cars ever made.

fueleconomy.gov says you're exaggerating. The original EPA sticker for the 1989 240SX was for 26MPG highway with the manual transmission. The automatic was 25MPG. 30MPG might be doable if you drive very carefull.

Having owned one with the manual transmission and achieved real-world highway mileage of 30 mpg without doing anything special and on H-rated tires (well-inflated though) I call shenanigans. Mine had a quarter-million miles on it, too. And the automatic has a lockup torque converter and the same final ratio, so if you're not over-accelerating then there's no reason why it should suffer much, either, but I only owned an automatic for a moment and sold it pretty quickly.

What you're missing is that this is the way it has long been. Charger, Challenger, Super Bee, for example. Or Camaro, Firebird, Trans Am. Most designs from GM, Chrysler or FoMoCo are sold under three different marques! Only flagship vehicles and trucks are exceptions.

Your insinuation that only lawyers are entitled to an opinion on the application of copyright is misguided. Understanding copyright is everybody's business. Unless you never write a line of code or post to a blog or Twitter, copyright's ever-widening reach ensnares you, too. Know the basics, or risk finding yourself on the wrong end of a lawsuit.

Obviously, the more financial stake you have in the output of your keyboard, the more research and expert consultation you'll require.

If you disagree with grandparent, argue on the merits of his/her interpretation.

I actually CAN'T argue with his interpretation, since IANAL. He contends that an automobile is sculpture. There is, as I understand it, a large body of law that would say that it is not. I could argue that there is more of a correlation between fashion and the styling of automobiles...fashion which is also not copyrightable for some of the same reasons.
I DO understand copyright, in so far as it affects my life as a writer of software (it does) but in this case, the bat-mo-people are arguing trademark with a crossover into copyright and derivative works.
I suppose I could have just said, "No, your interpretation is probably wrong", but this is/.

the bat-mo-people are arguing trademark with a crossover into copyright and derivative works.

That's what I think, too. Batmobile should be a trademark issue and the copyright argument seems like an unwarranted stretch. I'm kind of glad I'm not a lawyer, since I don't need to attempt to persuade a judge that up is down and black is white.

I'm kind of glad I'm not a lawyer, since I don't need to attempt to persuade a judge that up is down and black is white.

I agree. MFWAL (My father was a lawyer) and he was paid to defend people, whether what they did was right or wrong...and he was very good at his job. So if a lawyer is paid to argue that up is down and black is white, that the lawyer will do.
My father didn't always win (USUALLY, but not always) and I can remember him talking to a con in prison on the phone...very pleasant, cordial, helpful, polite. I questioned him about why he was so nice to the guy, who really was "not a nice person". His reply..."Every

It's Latin, from Aristotle, meaning "nobody is thought to be ignorant of the law". (first google result).It's the principle that all people within a certain jurisdiction are assumed to know everything about that jurisdiction's laws. In particular, you cannot use ignorance as a defense for having breached the law.Therefore every citizen must take preventive steps to know as much about the law as is reasonably feasible, rather than always depending on a lawyer.

Not knowing this seriously puts in question the quality of your education.

If that is Latin, which on the face of it is true, then it most definitely is NOT from Aristotle.

Something should be said about using ignorance to support an argument against using ignorance as a defense. Not quite sure what.

Actually this whole thread makes me think that Green's Law needs to reformulated in a way that would generalize it to cover this kind of thread. For those who do not know or may have forgotten, Green's Law states:

And the attribution should mention that this was the common Latin translation of the Aristotle quotation. This is especially true with Aristotle, as the early Christian church adulterated his teachings to better fit their orthodoxy as they incorporated his pagan based philosophy into their theocratic structure.

I grant that the failure to properly attribute quotations that have been tainted by the religious propaganda of centuries ago is a common error. But that does not make it excusable.

That's a different Green, I believe. The one I refer to is more often associated with Cole's Law, and the slicing and dicing of... well, just about anything I guess.

I find your signature, "horror vacui", amusing. I have been doing some texture work in Blender that requires packing as much image information as possible into a 1024x1024 space. Horror vacui is an excellent label for this practice. Thank you for bringing it to my attention.

As an art student, your opinion is irrelevant. A car is not a work of art. This is not subject to interpretation: what is and what is not a work of art is strictly defined by law. Otherwise, the law would be ripe for abuse, since any product of human manufacture can be argued to include some form of human expression and thus could be interpreted as art. Art has special protection by copyright due to special-purpose laws and it is very important to clearly define what is and what is not covered by them, rega

I've been to car shows that had cars with exquisite custom paint jobs and other modifications that clearly made them first and foremost a work of art. Yes, they were still cars. Yes, the government still required license plates. But the only "driving" use was to get them on and off of the tow vehicle at car shows and at their storage facility, maybe some driving in parades and the like, plus maybe a few miles a month just to keep the mechanical parts working.

If you're going to compare it to sculpture, then you should consider that artist Jeff Koons was successfully sued [wikipedia.org] for creating a sculpture of a scene depicted in someone else's photograph.

I think he's trying to say that by suing this guy, he'll never be able to own a 1960 Batmobile. Which is ruining his childhood (but maybe you did undestand that, and I'm not understanding why you're upset).

I want a Batmobile, but I do think maybe it should be be able to be copyrighted. I'm really torn on this one. I don't agree with copyright law, but I think this one may be a good one.

?. I grew up with Batman The Animated Series (1990s, which I believe is far superior to any other), but I'm not wanting the batmobile. What I'm saying is that companies are bent on making sure they own every single piece that belongs to them so they can make sure we pay royalities out the ass.

I think he's trying to say that by suing this guy, he'll never be able to own a 1960 Batmobile. Which is ruining his childhood (but maybe you did undestand that, and I'm not understanding why you're upset).

No, I didn't understand that - hence my question. How, exactly, is his childhood "ruined" because he can't have a shiny thing?

I want a Batmobile, but I do think maybe it should be be able to be copyrighted. I'm really torn on this one. I don't agree with copyright law, but I think this one may be

Since something need not be capable of protection by copyright to be capable of protection by a trade mark (a single word, for example) and since something need not be a trade mark to be eligible for copyright protection (this eliminate pretty much everything which is protectable by copyright today), Zerner's statement may be true as a matter of law, but it does not address the Warner's claim.

By the same argument, the studios like Warner are liable for every time they depict an existing vehicle. Do they have proof of licensing from the auto makers for showing a VW bug or a Mustang? How about some guy's tricked-out bike? And they've got deeper pockets to hit than some guy in a garage.

Do they have proof of licensing from the auto makers for showing a VW bug or a Mustang?

I've seen programs, i.e. Mythbusters, fuzz out the nameplates of cars. In regards to studios such as Warner, I think they do want to open this can of worms. They seem to do more stuff with lawyers instead of stuff with writers and directors (actors go into politics) so whether it is beneficial or not, they will dive into copyright battles.

Hey, we now have car analogy such as what AC posted earlier: Ferrari Man and Toyota Boy. And a top 5 rated comment by paiute, "Working on the new Fantastic Four"

I think you will find that car manufacturers want their cars to appear in movies, and probably pay the studios to include them, or at least give them the cars for free or at a reduced price so that they will use them.

It's not like Warner is selling their own cars these guys compete with. What's the point of pissing off your fanbase?

They have to protect their property somewhat. If the car has the Batman logo, then they might have more of a leg to stand on. DC owns the Batman brand, letting someone (A) profit from it without their cut or consent and (B) potentially DAMAGE (or at the least dilute) the brand would hurt their bottom line.

Let's say they shrug their shoulders and say "have at it" like some fans want. Where does it end? I'm not talking about fan fiction and stuff, but for-profit stuff.

Toyota accelerator fiasco? Was that not found to be oldsters who can't tell brake from gas?

Bring back 3 pedals, that would sort this out.

No, a few years ago Toyota had an actual issue that was perhaps blown out of proportion, but it existed in some rare cars. I forget if it was a software glitch or some bad parts.

Accelerators are electronic / computerized now. It USED to be, you pushed the accelerator, which pulled a cable, which pulled a widget that controls the throttle. Now it's computerized: so the pedals now send a signal to a computer that says "He's pushing it this hard" and the computer says "OK, let's adjust the air/fuel mixture

I have had the old mechanical ones stick. Flooring it was how I got it unstuck. Since I had 3 pedals I could have always held down the clutch. Which should always mean no power gets to the wheels, of course a slushbox can be shifted into neutral as well, but no one seems to know that.

With the electronics, it wasn't a problem of something getting physically stuck but a sensor sending faulty data regardless of the position of the pedal, or the software just completely putzing up. Supposedly even flooring it wouldn't "reset" the issue. Think frozen computer... clicking erratically won't fix the issue. In my case, the sensor was faulty and would occasionally just stop reading input from the pedal at all until I turned off the car (think "reboot").

Did you ever stop to think that maybe Batman should be in the Public Domain by now, rendering all of this moot?

I'd considered RECENTLY as I was having a debate about the whole "Disney" thing and how they pretty much took control of a lot of old content. My position is more of a personal preference since (A) IANAL and (B) the law is on DC's side about not releasing Batman to Public Domain.

I think I'm OK with a company holding the rights AS LONG AS they are actively developing it. In the case of Batman: there are multiple comics out each month that continue and expand the story. They've branched off with Batgirl, B

Because in this new utopian fascist state, meglomanical CEOs don't get a rats ass about fanbase, people, or common sense. They care about power and the ability to project it. They don't even consider the ramifications (mentioned in other posts), but just for what *they* get out of the struggle. Business is a necessary evil, but sadly in the past few decades Evil has been more the modis operendi.

Though not a Marxist myself, I think he was on to something when he said Capitalists will gladly sell the rope

If this lawsuit does establish a new intellectual property right, Warner could be in big trouble.

The 1966 Batmobile is a modified Lincoln Futura concept car from 1955. As this is a brand new type of property right, it's unlikely that George Barris who bought the concept car and modified it to make the Batmobile ever bought the 'sculpture' rights to it, so the rights would revert to the 'sculptor' of the original car, the Ford Motor Company. If they win, Warner could not stop clones, as Ford would be the rights holder, not Warner... and Ford would be able to bill Warner for the use of their 'sculpture' in all the toys, films, TV shows that have used it over the years.

it's unlikely that George Barris who bought the concept car and modified it to make the Batmobile ever bought the 'sculpture' rights to it, so the rights would revert to the 'sculptor' of the original car, the Ford Motor Company.

The thousands of parts scavenged from the plastic model kits of the era are not the same thing as the props built for Star Wars.

Barris was trying to get Hollywood's attention with the Futura, but aside from "It Started With a Kiss" in 1959, the Futura had been languishing in his Hollywood shop for several years.

In December 1965 Ford sold the Futura to Barris; despite its huge original production costs --- the equivalent of approximately US$2 million in 2009 ---- Barris was able to buy the vehicle for the nominal sum of $1.00 and "other valuable consideration".

If this lawsuit does establish a new intellectual property right, Warner could be in big trouble.

The 1966 Batmobile is a modified Lincoln Futura concept car from 1955. As this is a brand new type of property right, it's unlikely that George Barris who bought the concept car and modified it to make the Batmobile ever bought the 'sculpture' rights to it, so the rights would revert to the 'sculptor' of the original car, the Ford Motor Company. If they win, Warner could not stop clones, as Ford would be the rights holder, not Warner... and Ford would be able to bill Warner for the use of their 'sculpture' in all the toys, films, TV shows that have used it over the years.

What's strange is that Barris retained ownership of the Batmobile, and leased it to Warner Brothers.

So either what I read was incorrect, or Barris sold the car to Warner or DC at some point; or the Plaintiff has no Standing to sue whatsoever (assuming the replica doesn't have a Batman logo on it. I would argue even calling it a "Batmobile" (which is probably Barris' term) wouldn't be enough to confer standing to sue).

If you read the article, this is basically a trademark battle, with some copyright FUD thrown in for good measure.

Trademark is basically about fraud - would a reasonable person think that they have bought an official Batman car, or just a unofficial replica? So, Warner may or may not have a case, depending on how these are marketed and sold. However, what I think Warner is really trying to do is to spend Mr. Towle under the table, and they are likely to be quite successful in that.

If you read the article, this is basically a trademark battle, with some copyright FUD thrown in for good measure.

Trademark is basically about fraud - would a reasonable person think that they have bought an official Batman car, or just a unofficial replica? So, Warner may or may not have a case, depending on how these are marketed and sold. However, what I think Warner is really trying to do is to spend Mr. Towle under the table, and they are likely to be quite successful in that.

I would hazard to guess that certain items are protected - the distinctive Batman emblems, for example and many be the paint scheme - assuming they were trademarked. An interesting comparison is the Cobra replicas - you can copy the original AC shape but can't use Cobra emblems (unless you buy them from the trademark owner).

or put a bumper sticker on it... And then it's your interpretation of a Batmobile, and it's a new work of art, and it's copyrightable by you under fair use laws.

Or, every automaker can sue Warner Brothers every time they use a car in a movie. It works both ways.

Funny story BTW, about Herbie the Love Bug... VW initially didn't *want* Disney to use a beetle in the movie. They thought it was going to hurt sales. Instead, it had the opposite effect. When the "remake" came around with Lindsay Lohan, VW was all f

How has this not come up before, given the decades' worth of fan-made movie and television prop replicas being sold at conventions and websites around the world? I can remember seeing Star Trek props made from the "original molds" on dealer tables twenty-five years ago - has Paramount been going after these folks for copyright/trademark violations all along? Or is this case different because it's a car?

If they're going to print comic books, they'll need to be *about* the sort of character that'd drive those cars.

The Vauxhall Astra [wikipedia.org] could get Thirtysomething-married-with-two-young-children-in-the-back-seats-Man.
The Ford Transit [wikipedia.org] gets White Van Man [wikipedia.org], obviously.
With its contrived, overstyled appearance, the Nissan Juke [wikipedia.org] looks like that puppet from the Saw films [wikipedia.org], though in reality our hero^w villian driving it would be Twenty-or-Thirtysomething-twonk-with-a-moderate-amount-of-disposable-income-to-spend-on-crappy-"lifestyle-oriented"-pretend-4x4-toy-vehicles-demographic-Man (or -Woman).

The possibilities are endless, problem is that 99% of cars will look like they should be driven by Boring-Stuffed-Shirt-Man or Dull-Suburban-Mother-Woman (er, because in reality... they are).;-)

[from The Fine Summary]The implications of a ruling upholding this standard are easy to imagine. Ford, Toyota, Ferrari and Honda would start publishing comic books, so that they could protect what, up until now, was unprotectable.

Warner Bros and DC Comics have little to fear if Ford, Ferrari, Chevrolet, or Hyundai start publishing comic books. But if Honda or Toyota go this route, well, that would be very hard to compete with. No matter how many Captain Vanilla look alikes the USA, Korea, or Europe produce, none of them would stand a chance against the Sailor Moons of the Japanese manga artists.

It would be the Stay Puft Boy against Godzilla in Willy Wonka's factory. It would be a disturbance of the Farce, like tens of thousands of

Are they asserting copyright? That is very strange. There are things called "design patent". Essentially it patents a "form" of an object. Like a particular floral pattern on a door knob or something. It does not prevent others from making door knobs. Just gives the rights holder the right to prevent others from making an exact replica or something very close. Very heavily used in garment industry, and chinaware cutlery side of things. I am surprised the comics is going after copyright claims.

As a readily recognized facsimile of logo can be recreated simply by a mathematical equation [wolframalpha.com], I'm not sure how they can claim any sort of infringement unless they are claiming to own that sequence of mathematical operations (which is bollocks).

Actually you do see this. Hyundai was making copies of luxury vehicles for several years (not sure if they still are or if they were successful enough that they were able to stop) - cars that to the casual glance would like BMW, Mercedes, etc.

Hyundai's tact was, "Hey you don't have to pay for a high-end luxury vehicle to get a high-end luxury vehicle."As far as the other manufacturers, there's nothing to gain from confusing customers.

So they copied the grills is what this looks like to me.Angle of the car, wheel arches, are still fairly different.Not sure I would call that a copycat, I was expecting it to be hard to tell the difference from a casual glance, but I guess it could trip someone up when in motion.

Kinda sleazy, but Buick did that with a car as well. They made it look like BMW grill.

As far as the other manufacturers, there's nothing to gain from confusing customers.

Well that's rather simplistic. Hyundai isn't even the first example that usually comes up.The Crysler 300 is well known to be a Bentley look-a-like, Cadillac has been trying to rip off BMW designs, some Jeep and Land cruiser designs are almost indistinguishable, And that's without looking at things like crossovers where to be honest I have trouble telling EVERY manufacturer apart!

I've thought sometimes about starting a business venture: all the technology in the 250GTO is old enough now that I could easily build one identical to the originals. Any patents have long expired, and as long as I don't put a "Ferrari" badge on it I should be able to skirt any trademark issues. I'm sure there are enough people willing to buy something like that to make it worthwhile.

[How can you copright] Something you can't competitively provide to the public?

Let's turn back the clock to the 80's or 90's before the Internet really got big..

The following scenario doesn't apply to the batmobile issue, but it DOES apply to your train of thought which I've heard from others before...

Young Author: This is great, my new concept of a super hero with backstory X, costume Y, and logo Z is a great idea! I've had it since childhood. Let me just get a copyright and stuff. Maybe show off a self-printed Issue #1 at a covention. I could probably find a printer to make some

Exactly the point I was making. The AC was asking how can you have a copyright if you can't competitively provide it. Following that logic, a copyright wouldn't be enforceable if the owner couldn't do anything competitive with it.

I was using an example of how silly that is: leaving it as "oh well, you win... because I couldn't compete"

Obviously, in real life, the kid gets a lawyer and sues the living **** out of the publisher. Because that's what the copyright is there for.

Automakers do not have to copyright their designs, they trademark aspects of them. They also patent aspects of them, and generally only defend those patents and trademarks when others attempt to build new vehicles of mass production.

This gentleman is reproducing something by modifying an existing car to look like another modified car. DC nor the TV producers built the car from scratch, they modified a design for a concept car from Ford [wikipedia.org] using existing Ford chassis to make their batmobile. Arguably, theirs is a derivative work in of itself, which should significantly reduce their ability to claim harm from others also making derivative works.

It's just like clothing. You can't copyright a clothing design, but you can copyright the artwork on it. I can make as many replicas of a $1000 Dolce and Gabbana shirt that I want and sell them for $10 as long as I don't brand them with "Dolce and Gabbana", and it's fair game. But I can't make a t-shirt with a Battlestar Galactica logo and sell it. So in this case, I think he should be allowed to make the car, but he can't put a Batman logo on it without a license...

How much artwork can he put on it then? Can build a replica and paint it purple? Can he paint it purple and put a yellow oval on the doors? Can he paint it purple with a yellow oval, and put a black baseball bat in the oval? Can he put a not-DC-licensed Batman stylized bat in the oval? Can he sell the car with cans of purple, yellow, and black paint, and say "here you go, one not-Batmobile, and a set of not-official not-Batmobile paints"?

I think he should be allowed to make the car, but he can't put a Batman logo on it without a license...

That would depend on where he got the logo from, and if the logo's production was licensed. If he bought a licensed logo from a store and slapped it on then I don't see a violation. It would also depend on if the show has fallen into the public domain. I had heard, for example, that at least the first season Star Trek had fallen into the public domain because its copyright wasn't renewed, but currentl